Southern Railway Co. v. Harrison

ANDERSON, C. J. (1) There was no error in sustaining the plaintiff’s demurrer to the defendant’s special pleas 9, 10, and 11. Plea 9 sets up the violation of a rule of the Mobile & Ohm Company, but does not set up any facts to show that said rule was made for defendant’s benefit, or that it was in any wise connected therewith. Pleas 10 and 11 set up a violation of the defendant’s rules, but fail to show any facts making the plaintiff’s intestate subject thereto or bound by them. The intestate was employed by and was working for the Mobile & Ohio Company, and the rules of this defendant as to its own brakemen had no application to the servants of the Mobile & Ohio Company. (2) Nor can we pronounce the pleas good as to contributory negligence upon the theory that the intestate, independent of the rules, voluntarily placed himself in a place of danger, as the averment that he negligently rode upon the engine is a mere conclusion. One of the pleas says he was riding in the fireman’s seat on the engine, while the others simply aver that he was negligently on the engine. (3) We cannot say as matter of law that it is negligence upon the part of a brakeman to ride upon the engine. He might be much safer upon certain parts of the engine than upon the top of the cars. The case of Warden v. L. & N. R. R. Co., 94 Ala. 277, 10 South. 276, 14 L. R. A. 552, is not an authority to uphold the pleas in question. There the court was not dealing with [441] pleading, but with the evidence, which showed that the plaintiff improperly left the place where he belonged and was riding upon the pilot or crossbeam to which the cowcatcher was attached, with his legs hanging out in front of the pilot, and this while the train was out on the main line proceeding from one station to another, and when the only duty he could have possibly had to perform was upon the top of the train. (4, 5) The trial court committed no reversible error in declining to let the defendant ask the witness Ernest, on cross-examination, to state whether or not he was laid off by the Southern Railway Company on the morning of the accident. The witness had just stated he had not worked for the defendant since that time, and it was therefore immaterial to the issues involved whether he quit or was laid off by the company, unless, as now suggested in brief of counsel, that the fact that he was laid off by the defendant was a circumstance affecting his credibility. If this be true, the purpose or relevancy of the evidence should have been suggested to the trial court, as there is nothing in the question which would indicate that it was being asked to show bias on the part of the witness. Moreover, the more proper and orderly way to have shown bias or ill will was to have asked the witness the direct question as to his state of feeling towards the defendant, and he may have admitted that it was bad. On the other hand, if he said it was good, then the defendant could resort to the introduction of facts and circumstances showing that the witness was biased against the defendant. (6) We do not think that the defendant was entitled to the general charge as to the wanton count. The defendant’s conductor who caused the train to proceed before waiting for the arrival of the Mobile & Ohio [442] train, then clue or nearly due, was familiar with conditions and surroundings; he knew of train 92; had known of it for years; knew that it made its run daily on that track; knew its schedule independent of the time table; had just had it all solemnly called to his attention by the order received at Coalburg; knew from these orders that No. 92 was coming west; knew from these orders, which he said he received correctly, that No. 92 would be at Bryan at 5:15; a short while before the collision consulted his watch; the watch showed the correct time; looked at his watch; read it; the watch shoAved 5:10; he went on, conscious of the approaching train, conscious that a wreck would occur should they meet; knew they were on the same track; knew that if a wreck occurred some one would be probably killed or injured; yet he went on with a reckless indifference as to consequences; the trains met, there was a wreck, and the intestate was killed. It is practically conceded that if Ernest read the Avatch correctly and then proceeded, he would be guilty of Avantonness, but it is contended that as he misread his watch he Avas guilty only of simple negligence. It was a question for the jury as to whether or not he read his watch correctly; he examined it, and it spoke the correct time. This was positive, affirmative evidence as to the time He says he examined it, but did not read it as it was. This was negative evidence, and it was a question for the jury as to whether or not he read it correctly or incorrectly. Moreover, we do not mean to hold that it would not be a question for the jui’y as to Avantonness even .if the conductor was honestly mistaken as the time. In matters-of such hazard and importance as the running of trains, we are not prepared to say, as matter of law, that the failure to have the correct time or the failure to properly read and translate train or [443] ders is a sufficient excuse to reduce the conduct of the men in charge of the train to simple negligence merely. The disastrous consequences and results from collision are too hazardous and destructive of human life to permit ignorance and negligence as to the contents of train orders or as to the correct time to authorize derelicts in charge of trains to escape a charge of wantonness, as matter of law, upon the excuse that they were merely mistaken as to the time or had misread the train orders, etc. These are matters which call for the highest degree of care and prudence, and we cannot hold that negligence and mistakes in this respect will, as matter of law, excuse the derelict trainmen of wanton misconduct. The cases of Birminghaon Waterworks v. Wilson, 2 Ala. App. 581, 56 South. 760, and Birmingham Waterworks v. Murray, 1 Ala. App. 443, 55 South. 271, have no hearing upon the present question, in principle or by analogy, as there is quite a distinction between mistakes in ordinary bookkeeping and those relating to the control and handling of dangerous and hazardous instrumentalities, not the least important of which is the running and handling of trains where the preservation of human life often hinges upon minuteness and accuracy to the highest degree. (7) There was no error in giving the plaintiff’s charges 8, 9, and 10, as the conductor Ernest was guilty of negligence, as matter of law, under the facts therein hypothesized. (8, 9) There was no error in refusing the defendant’s charge which we have marked “5” on page 43 of the record. It is argumentative, and singles out certain parts of the evidence. (10) Charge 7, refused the defendant, was palpably bad. [444] The other insistencies as to the ruling upon the evidence are so plainly without merit that a discussion of same can serve no good purpose and would only lengthen and incumber this opinion. The judgment of the city court is affirmed. Affirmed. McClellan, Mayfield, and de Graffenried, JJ., concur.